Resolving Workplace Issues Overview 2015 Note: This resource supports employees, supervisors and managers to identify and resolve workplace issues of inappropriate behaviour or misconduct. More information is available in: Resolving Workplace Issues: Resources for Employees Resolving Workplace Issues: Resources for Managers and Supervisors Resolving Workplace Issues: Work Bullying, Harassment and Discrimination Resolving Workplace Issues: Misconduct and Investigations Directorates may have additional resources and policies that apply. Refer to your local HR area for more information. Page 1 of 13 Contents INTRODUCTION ...................................................................................................................................................... 3 Respect at Work ................................................................................................................................................. 3 Natural Justice .................................................................................................................................................... 4 Procedural Fairness ............................................................................................................................................ 4 Confidentiality and Privacy ................................................................................................................................. 4 WORKPLACE ISSUES ............................................................................................................................................... 4 WHAT IS NOT A WORKPLACE ISSUE? .................................................................................................................... 5 INAPPROPRIATE BEHAVIOUR VERSUS MISCONDUCT........................................................................................... 6 PREVENTING WORKPLACE ISSUES ......................................................................................................................... 6 RESOLVING WORKPLACE ISSUES ........................................................................................................................... 7 Level One: Employee Manages and Resolves Workplace Issues at the Local Level ........................................... 8 Level Two: Employee Manages and Resolves Workplace Issues at the Local Level with Assistance ................. 9 Level Three: Manage and Resolve Workplace Issue via ACTPS Enterprise Agreements .................................. 10 RESPONSIBILITIES ................................................................................................................................................. 12 Page 2 of 13 INTRODUCTION The ACT Public Service (ACTPS) is committed to maintaining a positive working environment and safe, healthy workplaces free from workplace issues such as inappropriate behaviour or misconduct. All employees have a responsibility to ensure they are aware of, and comply with, the standards of behaviour expected of them. Directorates, through their managers, have a responsibility to support employees in meeting their obligations and to take appropriate action to address behaviour that does not meet the expected standards. This resource provides information for employees, supervisors and managers on how to identify and resolve workplace issues from low level, one-off incidents through to more serious or ongoing issues that may constitute misconduct. By using this resource, employees, managers and supervisors will: increase their awareness of inappropriate behaviour and misconduct; understand their responsibilities in relation to preventing and resolving inappropriate behaviour and misconduct; understand the mechanisms available within the ACTPS to manage and resolve workplace issues; and understand the consequences of inappropriate behaviour and misconduct. When using this resource it is important to remember that not all workplace issues are the same and complex cases may require a range of different mechanisms to resolve the matter. Therefore, while this resource provides a useful start point to identify, manage and resolve workplace issues, staff should not expect that each workplace issue will always be resolved in exact accordance with the three tier process described in this resource. Directorate HR teams, RED Contact Officers and supervisors/managers are available to provide support and advice throughout the process. GUIDING PRINCIPLES There are four guiding principles by which workplace issues are to be managed and resolved in the ACTPS: 1) 2) 3) 4) Respect at Work; Natural Justice; Procedural Fairness; and Confidentiality and Privacy. Respect at Work The ACTPS operates under a ‘no tolerance’ approach to work bullying, harassment and discrimination. Respect at Work sets the expectation for all employees to nurture positive workplace cultures, where the inherent uniqueness and dignity of individuals is respected and we treat each other in a fair, courteous manner. Under Respect at Work: work bullying, discriminatory or harassing conduct will not be tolerated; appropriate action will be taken against individuals who engage in work bullying, discriminatory or harassing conduct; and Page 3 of 13 all forms of inappropriate behaviour and/or misconduct will be treated seriously, promptly and fairly with due regard to procedural fairness, natural justice and confidentiality. Natural Justice Natural Justice means that individuals involved in resolving a workplace issue are given the right to respond and that the resolution process is managed with an absence of bias. No one in the ACTPS should make decisions about any case of inappropriate behaviour or misconduct in which they may be, or may fairly be suspected to be, biased. Bias does not only relate to actual bias – it can also relate to perceived bias. Actual bias is where it is established that the delegate (that is, the relevant decision-maker involved in resolving workplace issues) was prejudiced for or against a party. Perceived bias is where a reasonable person would have a view that the delegate could be reasonably suspected to be biased. Procedural Fairness Adhering to Procedural Fairness means ensuring that fair and proper procedures are used by supervisors and managers when managing inappropriate behaviour and/or misconduct, and by delegates when making decisions relating to the resolution of workplace issues. Ensuring that an employee responding to allegations of inappropriate behaviour or misconduct is granted Procedural Fairness requires that: the employee receives a hearing appropriate to the circumstances; there is no bias in the process or decisions resulting from that process; there is sufficient evidence to support a decision; and that enquiries are made into any disputed matters. Procedural Fairness includes the employee’s right: to reasonable advance notice and the offer of a support person where formal discussions relating to workplace issues are scheduled; to reply in a way that is appropriate for the circumstances; that their reply be received and considered before any decision is made; and to receive all relevant information before preparing their reply. For Procedural Fairness to be met when making decisions about a particular case, the employee must receive the following information: a description of the possible decision; the criteria for making that decision; and the facts/evidence upon which any such decision would be based. Confidentiality and Privacy Confidentiality and Privacy means ensuring that the management and resolution of workplace issues is treated confidentially by all parties involved in the process, and that any disclosure of information relating to the workplace issue is limited to those legitimately involved in resolving it. Appropriate records must also be maintained in line with relevant legislation. WORKPLACE ISSUES Workplace issues are incidents that are seen as inappropriate by the person experiencing or observing the issue; they can arise every day and in many different situations (e.g. social networking forums, face-to-face). Workplace issues can vary in terms of seriousness; they may be low level or a one off incident that is inappropriate in nature, or they may be more serious incidents such as work Page 4 of 13 Remember that not all workplace issues arise through willful or deliberate intentions to offend bullying. Workplace issues include a wide range of behavioural, environmental, cultural, relationship and performance issues, such as: communication – staff attitudes, assumptions, rudeness, misunderstandings; information – inadequate or incorrect information; process – inadequate procedures, failure to provide sufficient information, or a failure to consult in decision-making; and professional conduct. While everyone will react and respond differently to workplace issues, some examples of the negative impact that inappropriate behaviour or misconduct can have includes: an impact on the individuals involved, such as stress, anxiety, panic attacks, sleeping problems, loss of self-esteem and confidence, isolation, strain on relationships, absenteeism, reduced work performance and work dissatisfaction, impaired concentration or ability to make decisions and decreased productivity; an impact on the wider team, such as reduced team morale and increased tension at work; and an impact on the organisation, such as decreased productivity, increased turnover, reduced performance, absenteeism, decrease morale, damage to brand and reputation, work disruption and costly workers compensation claims and/or legal action. WHAT IS NOT A WORKPLACE ISSUE? Personality clashes, robust discussion, team dynamics Disagreement or differences of opinion between employees do not always result in inappropriate behaviour or misconduct. The ACTPS promotes respectful, robust discussion between employees to enhance productivity, which is a characteristic of a mature workplace culture. This can involve challenging each others’ opinions, and may sometimes be frustrating for those involved. Similarly, not everyone in the workplace will always get along easily. In each case, your tone, body language and choice of language when engaging with others can significantly impact the outcome of any given situation. Remaining patient, courteous and respectful to each other will help minimise the likelihood of workplace issues arising. Reasonable Management Action Managers and supervisors have a responsibility to direct and maintain work flow and ensure both service delivery and client outcomes are achieved. Reasonable managerial actions may include: A bad day at the office Not everyone will get it right all the time! Anyone can have a bad day and sometimes people will cause offence. However, it is not acceptable to use adverse circumstances as an excuse to treat others in the workplace badly. All employees must be aware of how they communicate and adapt their behaviour so that it is appropriate for any given situation. This is where the importance of resolving workplace issues effectively and promptly at the local level becomes critical; the timeliness of an apology, and the exercise of graciousness, will help to maintain a positive work culture and avert a negative cultural impact that may lead to inappropriate behaviour and misconduct. providing reasonable directions about work and setting reasonable goals; Page 5 of 13 “A public employee shall, in performing his or her providing appropriate and constructive feedback duties, comply with any about an employee’s work performance and lawful and reasonable managing the performance; direction given by a person allocating work in a fair and equitable way; having authority to give ensuring workplace policies are implemented; direction” (section 9 of the addressing unacceptable workplace behaviour; PSM Act) allocating particular hours of work to meet operational requirements (e.g. 8.30am commencement, having regard to the employment framework); making justifiable decisions related to recruitment and selection for an employee’s promotion and/or other opportunities; applying organisational change or restructuring; transferring or re-deploying an employee for operational reasons; being objective and confidential when informing an employee of unreasonable or inappropriate behaviour; following the principles of Respect at Work, Natural Justice, Procedural Fairness and Confidentiality and Privacy; and acting in accordance with the ACTPS Values and policies. Although some of the above actions may be challenging or confronting for some employees, this does not automatically make them inappropriate or unreasonable actions. INAPPROPRIATE BEHAVIOUR VERSUS MISCONDUCT Workplace issues relating to how we treat each other in the workplace tend to occur on a sliding scale of severity; at the lower end of the scale is behaviour that is inappropriate but still needs to cease and not reoccur, while on the higher end of the scale the behaviour may amount to misconduct – that is, behaviour that may justify disciplinary action if it is found to have occurred. Inappropriate behaviour is generally a one-off event that is not serious in nature, or a repetitive pattern of low level actions that disturbs the work environment. A reasonable person, having regard to the circumstances, would find the behaviour to be unacceptable or unreasonable. Inappropriate behaviour can usually be resolved locally in a non-disciplinary way. Inappropriate behaviour can escalate to misconduct if the individual conducting the behaviour does not cease or adjust their actions to meet the expected standard. Misconduct occurs when an employee’s behaviour is willfully or deliberately unsatisfactory, breaches their contract of employment, or intentionally fails to meet the requirements of their duties. In the ACTPS, an intentional or reckless breach of employee obligations/standards amounts to misconduct. Serious misconduct is misconduct of such a nature that it would be unreasonable or inconsistent for the employer to continue the employee’s employment and usually warrants termination of employment or the suspension of the employee without pay. Employees found to have engaged in misconduct or serious misconduct may have disciplinary action imposed against them. PREVENTING WORKPLACE ISSUES All ACTPS employees have a responsibility to contribute to positive work cultures and not engage in behaviour that is inappropriate or constitutes misconduct. Page 6 of 13 Breaching section 9 of the PSM Act: Section 9 sets out the standards of behaviour expected of all ACTPS employees in order to uphold the professionalism and probity of the ACTPS. A breach of these standards constitutes misconduct. The Public Sector Management Act 1994 (the PSM Act) sets out the standards of behaviour expected of all ACTPS employees in order to uphold the professionalism and probity of the ACTPS. Stemming from the PSM Act, the ACTPS Code of Conduct specifies four key values which all employees must uphold; Integrity, Collaboration, Innovation and Respect. Upholding these values involves treating each other with sensitivity and courtesy, acting professionally and collegiately, being honest and dependable, not shirking responsibility, working together and seeking new and better ways of doing business. In addition, the ACTPS Respect, Equity and Diversity (RED) Framework promotes positive work cultures through upholding the values of Respect, Equity and Diversity in the workplace. This means respecting individual difference, celebrating diversity and treating people equitably. Personal commitment to these values and behaviours will help minimise the likelihood of a negative culture where inappropriate behaviour or misconduct is likely to occur. RESOLVING WORKPLACE ISSUES The seriousness of a workplace issue and the appropriate options for resolution can be determined by categorising the offending behaviour/s into one of three levels, as per the below diagram. This process is founded upon the ACTPS commitment to creating positive workplaces and promotes the resolution of workplace issues at the lowest possible level wherever appropriate. Who can help when it comes to resolving workplace issues? Supervisors, managers, Executives (via the Open Door Protocol), local HR teams or RED Contact Officers Level Three Issue managed through underperformance or misconduct processes in ACTPS Enterprise Agreements Level Two Issue managed locally applying restorative processes and resolution techniques (RPRT) with assistance from supervisor, manager or HR Level One Issue managed locally by the employee directly or with assistance from supervisor or manager A range of strategies are available at each level to support the efficient and effective resolution of the workplace issue, as described below. Regardless of the Level at which a workplace issue is managed and resolved, any action taken should focus on positively influencing the employee’s Page 7 of 13 future behaviour. The goal is for the behaviour to cease or improve and not re-occur, and it is important to start with this objective in mind. Level One: Employee Manages and Resolves Workplace Issues at the Local Level Resolving workplace issues that are inappropriate at Level One is a key means by which all employees can contribute to the ACTPS goal of creating positive work cultures. The features of a Level One workplace issue can include: one-off or irregular occurrence; not serious in nature; a series of low level, minor events; inappropriate in nature; does not appear to constitute misconduct as outlined in ACTPS Enterprise Agreements; or able to be resolved easily and quickly at the local level. Level One workplace issues can generally be resolved quickly, locally, and directly by the employee who experienced or observed the behaviour. The employee may seek the assistance of their supervisor or manager, but this is not mandatory. A key goal of Level One is for employees to feel empowered to deal with inappropriate workplace issues as they arise Employees are encouraged to promptly address and resolve issues early and directly with the employee/s they are experiencing the issue with, rather than ignore it. This provides the best opportunity for a positive resolution as it focuses on maintaining and/or improving working relationships, minimises the likelihood that a minor issue will escalate into a serious one, and supports continuity of work. Options for resolving Level One workplace issues include: take no further action but monitor the situation; seek support and advice from a trusted and confidential source; seek counselling from an Employee Assistance Program (EAP) provider; seek personal development (e.g. training for resilience, having difficult discussions etc); have a direct conversation with the individual; or have a discussion with their own supervisor or manager about the issue (or if the issue involves their direct supervisor or manager, consult with next level of management or HR). It should be noted that the outcome of a Level Two or Three process may be that a decision is made to resolve the workplace issue through Level One at the local level. The desired outcome at Level One is that the issue is successfully resolved in a non-disciplinary way, with ongoing monitoring to determine that the resolution is effective. If the issue is not resolved, Level Two options for resolution may need to be considered. Level One Process Flow Employee Experiences or observes workplace issue Employee Assessment - Determines the issue can be managed at Level One - Chooses their preferred option for resolution Outcome (for the employee) - Issue is resolved - Issue is monitored - Issue is not resolved; Level Two/Three options considered Page 8 of 13 Level Two: Employee Manages and Resolves Workplace Issues at the Local Level with Assistance Workplace issues of inappropriate behaviour and some instances of misconduct may be resolved at Level Two. The features of a Level Two workplace issue can include: the nature of the workplace issue is complex; there are disputed facts; it involves a one off event that is serious in nature; there is a pattern of ongoing behaviour/s that are inappropriate; Level One or Two options for resolution have already been attempted without success; or a Preliminary Assessment is required to determine the best way forward. Managers and supervisors who become aware of a workplace issue need to know how to conduct a Preliminary Assessment to determine the appropriate means of resolution. More information on this is available in Resolving Workplace Issues: Resources for Managers and Supervisors. At Level Two, employees seek the assistance of their manager or supervisor to resolve the workplace issue. For a workplace issue to be resolved at Level Two, the manager or supervisor must undertake a Preliminary Assessment, the outcome of which must indicate that the matter can potentially be resolved using non-disciplinary measures at the local level. It should be noted that this is not the only possible outcome of a Preliminary Assessment; other outcomes include the issue being escalated to Level Three or resolved through other processes (e.g. Internal Review procedures underperformance processes). However, if the workplace issue is to be managed at Level Two, then a range of restorative processes and resolution techniques (RPRT) are available to support resolution. RPRT are cooperative approaches that focus on repairing the negative impact caused by the behaviour through communication, openness to others’ views, cooperation and reasonableness. The key advantage of RPRT is that they are educative and positive in nature, encouraging increased awareness of people’s feelings, standards of behaviour in the workplace and team dynamics. RPRT are based on the notions that: the best decision makers are usually the people directly involved; to effectively resolve an issue, people need to hear and understand each other; and workplace issues are best resolved on the basis of the employees’ interests and needs. RPRT: address and resolve issues at the earliest possible time and lowest possible level; are non-blaming and non-disciplinary; focus on hearing and understanding others to effectively resolve an issue; encourage ownership of issues; encourage individual/s to learn from their mistake/s and shape their future behaviour to ensure it is appropriate; and focus on a resolution, a positive workplace and continuation of healthy working relationships. Some advantages of RPRT include: early, quick and effective resolution of workplace issues; maintenance of privacy and confidentiality; Page 9 of 13 employees having an element of control of the process which can result in higher levels of satisfaction and empowerment; increased cooperation and productiveness because employees see that issues are addressed seriously; openness of facts, identifying issues and exploring new options; supporting personal and professional relationships within the workplace due to the nondisciplinary nature of RPRT; and cost and time savings for the organisation and employees compared to conducting proceedings under ACTPS Enterprise Agreements. Examples of RPRT include conducting a facilitated discussion, mediation process, or workplace conferencing/coaching, mentoring and targeted development. Supervisors and managers can contact their local HR team for assistance regarding RPRT. It should be noted that the outcome of a Level Three process may also be that a decision is made to resolve the workplace issue through Level Two or One options at the local level. The desired outcome at Level Two is that the issue is successfully resolved with no further action required, or the issue is resolved with ongoing monitoring by management to ensure the resolution is effective. If the issue is not resolved, Level Three options for resolution may need to be considered. Level Two RPRT Process Flow Employee Manager or Supervisor Conducts preliminary assessment Experiences or observes workplace issue Manager or Supervisor Employee Assessment Determines RPRT are appropriate, discusses with employees and implements - Resolves using Level One; or - Seeks assistance from manager or supervisor - Issue is resolved and monitored Outcome - Issue is not resolved; Level Three options considered Level Three: Manage and Resolve Workplace Issue via ACTPS Enterprise Agreements Workplace issues that may constitute misconduct are resolved at Level Three. The features of a Level Three workplace issue can include: Level One or Two options for resolution have already been attempted without success; Page 10 of 13 repeated behavioural lapses or continuing underperformance; Some workplace issues are so serious complex workplace issues where facts are not that they are immediately managed known or are contested; or at Level Three, or may transition to the workplace issue appears to involve: Level Three at an earlier stage, including: allegations of serious o a breach of Section 9 of the PSM Act; misconduct, work bullying, o engaging in conduct that has or may bring harassment or discrimination, or the ACTPS into disrepute; ongoing underperformance. o unauthorised absence/s where no satisfactory reason is provided; o convictions of a criminal offence, an offence where no conviction is recorded or failure to notify the ACTPS of criminal charges; or o making vexatious or knowingly false allegations against another employee. At Level Three, employees seek the assistance of their manager or supervisor to resolve the workplace issue. The manager or supervisor undertakes a Preliminary Assessment to determine the best way forward. For a workplace issue to be managed at Level Three, the outcome of this assessment must indicate either substance to the allegation, or that more information is required. The manager or supervisor forwards this recommendation to the delegate for consideration and consultation with the local HR team. This may result in an investigation being undertaken in accordance with Section H (Workplace Values and The delegate may determine a Behaviours) of ACTPS Enterprise Agreements. Following the workplace issue can be resolved investigation, the relevant delegate will make a decision based using non-disciplinary measures, upon the findings regarding the alleged misconduct, which may at which point the issue may be involve imposing disciplinary action against any employee/s managed using Level One Two options for resolution. found to have engaged in the alleged behaviour/s. The types of disciplinary action that may be imposed by a delegate include: a written warning and admonishment; a financial penalty which can: o reduce the employee’s incremental level; o defer the employee’s incremental advancement; o impose a fine on the employee; o fully or partially reimburse the employer for damage wilfully incurred to property or equipment; or o remove an SEA/ARIn benefit. transfer the employee temporarily or permanently to another position at level or to a lower classification level; or terminate the employee’s employment. More information on the processes in ACTPS Enterprise Agreements is available in the Resolving Workplace Issues: Misconduct and Investigations resource. Page 11 of 13 Public Interest Disclosures (PIDs) The Public Interest Disclosure Act 2012 encourages and enables anyone witnessing serious wrongdoing that falls within the definition of ‘disclosable conduct’ to raise concerns and guarantees these concerns will be seriously considered and investigated where warranted. The PID process can be conducted outside of the procedures discussed in this resource. Disclosable conduct is more serious than a technical breach of policy or procedures: it is action (or inaction) that has a significant or widespread negative impact, and the person disclosing information of this sort needs special protection. Examples of disclosable conduct include: corrupt conduct, e.g. accepting money or other benefits in exchange for helping someone to avoid prosecution, win a contract or gain Government approval; fraud or theft, e.g. falsifying documents or information, or stealing an employer’s property or funds; official misconduct or maladministration, e.g. gaining personal benefit by not revealing a conflict of interest; harassment, intimidation or discrimination, e.g. assaulting a person during the course of carrying out their work functions, duties or responsibilities; or practices endangering the health or safety of staff, the community or the environment. Refer to the PID Guidelines for more information: http://www.legislation.act.gov.au/ni/2014-357/default.asp RESPONSIBILITIES ACTPS directorates, executives, managers, supervisors and employees have various responsibilities associated with managing and resolving workplace issues, as outlined below: Directors-General/Directorates Must promote the ACTPS Values and Signature Behaviours as per the ACTPS Code of Conduct to create positive workplace cultures where workplace issues are resolved efficiently and effectively at the local level as they arise, where appropriate. Must actively prevent workplace issues of an inappropriate or misconduct nature, including work bullying, discrimination and harassment by adhering to whole-of-government procedures and guidelines, providing supervision and training for staff and undertaking ongoing risk management. Must identify, assess, and eliminate or control the risk factors that contribute to a work culture where work bulling is likely to occur. Must ensure that directorate specific guidelines and procedures are in accordance with ACTPS Enterprise Agreements and whole-of-government resources to support employees to raise workplace issues and access mechanisms to resolve inappropriate behaviour and misconduct. Must ensure that executives, managers, supervisors and employees know what to do if work bullying, discrimination or harassment occurs. Must investigate work bullying, discrimination or harassment as soon as possible in accordance with the procedures set out in ACTPS Enterprise Agreements and other applicable procedures. Must ensure that all parties of an investigation under Section H of ACTPS Enterprise Agreements are aware they will be informed of the outcome with due regard being given to privacy concerns, the nature of the complaint and the proportionality of information applicable to each party. Must keep accurate records of complaints of work bullying, discrimination and harassment. Must provide data on work bullying, discrimination and harassment to the Commissioner for Public Administration as part of the annual Agency Survey process. Page 12 of 13 Executives, Managers and Supervisors Must model and promote the ACTPS Values and Signature Behaviours as per the ACTPS Code of Conduct to create positive workplace cultures where workplace issues are resolved efficiently and effectively at the local level as they arise, where appropriate. Must treat staff with respect and ensure that their own conduct is above reproach, examining their own preconceptions, biases and stereotypes concerning workplace issues that are of an inappropriate nature or may constitute misconduct. Must “call out” inappropriate behaviour as soon as they see it or become aware of it. Must communicate the whole-of-government resources and related procedures to staff to ensure that they are aware of their rights and responsibilities. Must actively prevent work bullying, discrimination and harassment by addressing workplace issues and taking necessary corrective and preventative action. Must treat all issues of work bullying, discrimination or harassment seriously and respond promptly and confidentially in accordance with ACTPS Enterprise Agreements and whole-ofgovernment resources. Must take all reasonably practicable steps to prevent employees that are involved in the management and resolution of workplace issues from being victimised. All employees Must commit to and promote the ACTPS Values and Signature Behaviours as per the ACTPS Code of Conduct to create positive workplace cultures and treat others with respect. Must comply with lawful and reasonable directions given to them by any person having the authority to give the direction. Must understand their own behaviour and consider how it may be perceived by, and impact upon, others at work. Should actively prevent workplace issues from recurring by talking to the person/s conducting inappropriate behaviour, or raising concerns about workplace issues with their manager, supervisor or executive, a RED Contact Officer, Work Safety Representative or relevant HR team. Should familiarise themselves with their directorate’s relevant guidelines and procedures relating to management and resolution of workplace issues. Should offer support to anyone who is subject to inappropriate behaviour or misconduct, and if possible let them know where they can obtain help and advice. Must not raise workplace issues that are frivolous or malicious. Must participate in the management and resolution of workplace issues in good faith and with confidentiality. Page 13 of 13